Judge Issues Preliminary Injunction on Behalf of Business Owner in HHS Mandate Fight

Colorado federal District Court Judge and Carter appointee John L. Kane granted a preliminary injunction Friday on behalf of Hercules Industries in Newland v. Sebelius. The injunction secured by Newland’s attorneys at the Alliance Defending Freedom is the first to be ordered by a federal court judge in litigation surrounding the Health and Human Services (HHS) mandate under Obamacare.

At issue in this case is whether family business owners like the Newlands remain free to operate the businesses they built in accordance with their religious convictions or whether they can be forced by the government to violate their faith in order to keep afloat.

The HHS mandate requires nearly all employers to offer contraception, sterilization, and abortion-inducing drug coverage free of charge to their employees, regardless of their religious or moral opposition to doing so. The court order prevents the Obama Administration from forcing Hercules to comply with the conscience-crushing mandate while the lawsuit continues.

While the court order is limited to Hercules and does not relieve other family businesses or the many religious non-profits with moral objections from having to comply with the mandate’s burden, Judge Kane’s analysis offers hope that their pleas for the restoration of their religious liberty will get a fair hearing.

In granting the injunction, Judge Kane weighed the burden imposed by the mandate on the Newlands’ religious freedom against the government’s stated interest in enforcing it, opining that the harm to the government from non-enforcement “pales in comparison to the possible infringement upon [the Newlands’] constitutional and statutory rights.”

If Hercules had not prevailed, it would have been required to begin offering its 265 employees abortion-inducing drugs, sterilization, and contraception coverage and related counseling as of November 1, the date its self-insured health care plan renewed. Because it is a private, for-profit family business, it is excluded from the mandate’s narrow religious exemption and, like all non-religious employers, is ineligible for a year-long “safe harbor” that simply delays the religious freedom violations caused by the mandate. Alternatively, it could have chosen not to comply with the mandate or to drop insurance coverage altogether for its employees, facing steep monetary penalties under Obamacare either way.

What would this fine on faith look like? If it chose to buck compliance with the mandate, starting on November 1, Hercules would be fined $100 per employee per day of non-compliance. With 265 employees, Hercules’ fine would have amounted to $800,000 per month—almost $10 million per year. If Hercules were to take the more likely action of dropping health care coverage to avoid facilitating the mandate, thereby forcing its employees into government-run exchanges, it would face a fine on faith of approximately $2,000 per employee per year, for a total of $530,000 per year.

But dismay over the mandate is not limited to the monetary impact of government-imposed fines for the free exercise of faith. In its court filings and arguments in the case, the Obama Administration has consistently pressed a view of religious liberty so narrow as to render this fundamental freedom meaningless. It has attempted to read into constitutional and statutory protections for religious freedom a condition that would suspend its application in the business context, forcing business owners to abandon their religious and moral convictions as a condition of participating in commerce. For example, the Administration’s brief opposing the preliminary injunction argued that the “Plaintiffs’ free exercise claim fails at the outset because for-profit, secular employers generally do not engage in any exercise of religion protected by the First Amendment.”

Accepting the Administration’s logic would limit the application of religious freedom to individuals alone, acting within their houses of worship on weekends. It would effectively push religion out of every sphere of public life and restrict the free exercise rights of adherents to live out their faiths in their day-to-day lives. The Administration does not appear to perceive religion as something that people of faith strive to live out daily in every aspect of their lives, however imperfectly.

Many Americans would beg to differ, and numerous plaintiffs—for-profit and non-profit alike—have gone to court against the HHS mandate to do just that. In winning an injunction that prevents the mandate’s enforcement on its business while the case goes to trial, Hercules has demonstrated the strength of the religious liberty challenge to Obamacare.

Jennifer Marshall is vice president for the Institute for Family, Community, and Opportunity at The Heritage Foundation, overseeing research in areas of education, marriage, family, religion, and civil society. Read her research.

Join The Discussion

a business is only a business when it conducts business and gets business without government: costs, intrusion, force, DEPENDENCY! The government has no role here! Let the people decide without government having to exploit personal beliefs of the owner which is not apart of the owner's "restaurant service." Even if it was, so what? It's the peoples decision without outside influence! This is America and Mr. Cathy certainly doesn't need to pay the government to influence the public against the business! America needs jobs so let the government pay attention to the activists and move in on businesses owners because of beliefs that are personal? What sense does that make?

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